“No matter what the law actually says”: The Snowden Revelations and the Eternal Surveillance State

The sudden cascade of documents leaked by whistleblower Edward Snowden through Glenn Greenwald, Ewen MacAskill, and Laura Poitras in the Guardian, and Barton Gellman in the Washington Post has provided stark confirmation of our worst fears about the American government’s contemptuous disregard for our most fundamental rights. As Greenwald, speaking on Democracy Now, succinctly summarizes the extra-Constitutional world we now live in:

[T]he objective of the NSA and the U.S. government is nothing less than destroying all remnants of privacy. They want to make sure that every single time human beings interact with one another, things that we say to one another, things we do with one another, places we go, the behavior in which we engage, that they know about it, that they can watch it, and they can store it, and they can access it at any time. … It is vital, in their eyes, for them to have full and unfettered access to it. And they do. [Emphasis mine]

Every single time is what they want, and – digitally, at least – they have it.

It’s hard to overestimate how radical this is. Any serious discussion about this issue has to begin with a clear understanding of what we are talking about. We have to understand not only this or that discrete program – the Verizon/telco “metadata” order, Prism, Boundless Informant, etc. – but the whole matrix of the supercharged surveillance state that has been constructed over the past twelve years, of which these programs are the building blocks. We also have to understand the legal-constitutional and ethico-political premises and consequences of this new techno-social construct. It’s hard to overestimate how thoroughly this parasitic entity has already embedded itself in our polity, and how difficult it will be to extricate ourselves from it. Referring to the East German secret police who kept voluminous, detailed records on virtually everyone, Daniel Ellsberg is on the mark when he calls what we’re becoming “The United Stasi of America.”

Defenders of the nouveau-panopticon surveillance regime will often flit from this feature of program A to that feature of program B to assure us that, as Obama said, it’s a matter of only “modest encroachments on privacy.” So, when talking about the telephone intercept program, they’ll evade the issues involved with targeting Americans en masse, and keep chanting metadata, metadata, metadata. Insisting that they’re “not looking at people’s names and they are not looking at content” and only “looking at phone numbers and durations of calls” (except “metadata” includes more than that). “Nobody is listening to your telephone calls,” Obama says, and if “the intelligence community actually wants to listen to a telephone call, they have to go back to a federal judge.”

On the other hand, when they talk about the Prism program, which clearly sweeps up all kinds of content, including telephone calls — which includes Skype, Vonage, and all other VOIP carriers – the content vs. metadata issue slips away, and it’s: “That’s only for foreigners. No Americans.” That’s playing well in Europe.

It’s important to keep your eye on the ball to understand how deceptive this discourse is. The fundamental principle is, as Greenwald says: The government wants to record (and is now in fact recording) everything and everybody it wants to, content and metadata, on a massive, indiscriminate, ongoing, daily basis. Government agents, the official story goes, may not listen (or read or view – it’s not just telephone calls!) to everything in real time, but they want everything recorded and stored under their control so they can listen to, read, and view it whenever they want. It’s, ostensibly, when they want actually to listen or read that they, officially, have to go “back to a federal judge.” As a former government “privacy and civil liberties official on intelligence matters” puts it, the underlying notion is “that people’s privacy is not invaded by having their records collected and stored in government computers, but only when a human extracts and examines them.“ (To be precise: They may not record everyone all the time, they may not want to, but you’re abrogating to them the right to.)

It’s kinda like the Captain’s Log on Star Trek: Let’s go to the recording and see where you actually were, and with whom, and what you were saying and/or doing, ten years ago, and five, and two – ‘cause we’ve got it all on tapedisk quantum bubble. Amazing, isn’t it, how they had all those cameras and mikes everywhere? Now you know. Welcome to Starship Surveillance, Redshirt.

Got that? The government hasn’t invaded your privacy by capturing and recording every telephonic, email, internet, financial, medical, et. al., transaction. Only if it actually reads them, which they promise – cross their heart and hope to die – they won’t do without asking a “federal judge.” By which is meant one of those poodle FISA judges that never refuses. One has to understand that the FISA court does not function like any real “federal court.” Everything is done in secret, with no adversarial process. As one retired federal judge reminds us: “I can tell you that your faith in the FISA Court is dramatically misplaced.” Its judges are appointed in a process of “anointment …not a selection” from a “subset of a subset” of the most conservative and compliant judges who are “not boat rockers. So …To suggest that there is meaningful review it seems to me is an illusion.”

This is especially true since the FISA Act was amended in 2008 (and renewed as amended in 2012). Of the amended version, the ACLU warned that it “permits the bulk, suspicionless collection of electronic communications coming into and going out of the United States.”

Which brings up the question of legality versus constitutionality, a commonplace distinction that is hardly controversial. Prior to the 2012 FISA amendments, the NSA surveillance program had already been declared “unlawful” and in violation of a federal statue. One may want to hold that it is legal under the amended FISA law, although that position is under serious challenge by the Electronic Privacy Information Center (EPIC), the Electronic Frontier Foundation (EFF), and the ACLU – most arguing that it’s unlawful (not authorized by Section 215 of the Patriot Act) and unconstitutional (in violation of the First and Fourth Amendments).

One may hold that the program is legal within the terms of the Patriot Act. Still, in order to find even the official version of this surveillance constitutionally acceptable, one has to think it’s constitutional to search and record, not particular persons about whom one has probable cause or reasonable suspicion of criminal activity, but everyone – on the off chance that someday some of them will engage in criminal activity, or that one of them may call someone who Skyped someone else who Facebooked another who was playing Angry Birds with an actual criminal. No getting around it, that’s what you have to think.

If you think that, you are wrong. The surveillance state program as a whole and most of its constituent parts inarguably involve the use of an inarguably unconstitutional general warrant.

A general warrant refers to a warrant providing a law-enforcement officer with broad discretion or authority to search and seize unspecified places or persons. A general warrant lacks a sufficiently particularized description of the person or thing to be seized or the place to be searched. General warrants are unconstitutional because they do not meet the Fourth Amendment's specificity requirements.

Although such warrants were banned by the English Parliament in 1766, they reappeared under King George in the American colonies as "writs of assistance." As David Snyder reminds us, in his paper “The NSA's "General Warrants": How the Founding Fathers Fought an 18th Century Version of the President's Illegal Domestic Spying”: “Using ‘writs of assistance,’ the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These ‘hated writs’ spurred colonists toward revolution and directly motivated James Madison's crafting of the Fourth Amendment” – the one that reads “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The unconstitutionality of general warrants, anathema since the 18th century, is clear, unambiguous, set in stone. A primary reason the Fourth Amendment was written was to forbid the general warrant. No American legislature, no American president, no American judge, no American court (certainly not the phony, rubber-stamp FISA court), not even an American pundit, can make it constitutional.

This, by the way, is also why the now oft-heard meme, “It doesn’t bother me. They can record everything I do or say. I’ve got nothing to hide” (heard recently from Lawrence O’Donnell), is irrelevant and vapid. This is not an assault on me, or you, or Lawrence O’Donnell, personally. It’s an assault on all of our rights, and on the whole structure of rights we are supposed to live under. No one or group of us may abrogate those rights and that structure for the whole of society because we personally find it not inconvenient to do so. Dennis Loo puts it succinctly:

When you say that you’re ok with giving up the Fourth Amendment, you are not only foregoing your right and ability to ever dissent from authority, you are abandoning the right of each and every other person and organization everywhere of ever dissenting and organizing against anything that authority says forever.

That is certainly one of the main reasons the Obama administration has fought relentlessly to prevent the courts from hearing any challenge to the constitutionality of the surveillance programs and their enabling legislation.

And that is one of the main reasons for their fixation on keeping these programs secret. Until now, the ACLU was kept out of court on the procedural grounds that it had no standing, since it could not prove that its telephone records were seized. Thanks to Snowden’s revelations, the ACLU, a Verizon customer, is now again filing suit to challenge to the phone surveillance program, and the government will have a harder time arguing for its dismissal.

Of course, it would be more accurate to say that no one can assert the constitutionality of these programs without a tortuous reading of the law that annuls American constitutional history. It is not impossible that we will see a kind of evacuation of constitutional effect by a semantic reversal of meaning; that is what lawyers are for, and that is in fact what we are witnessing. The best-written and clearest constitutional statutes can be, and already have many times been, nullified by various combinations of corrupt, authoritarian political parties and leaders, compliant courts, fawning media, and, especially, a politically ill-educated, fearful, and/or submissive populace. So, sure, by “inarguably” unconstitutional, I mean “among those who are not being deliberately deceptive.”

In this instance, the government is using secret interpretations of the law, based on its secret and unprecedented construal of legal and customary language, to define radically unconstitutional apples as modest, legal oranges. For example, the government will claim that it does specify a unique search target in a way that evades the general warrant restriction – that target being Verizon Business Services. So the records of tens of millions of people are defined to be the one particularized “person” in the normal language of a constitutional warrant. Or, you might be considered a “foreign” entity if you call India frequently, or use your credit card to pay for a hotel in Turkey. Or, since an “intercept” is not permitted without a warrant, an “intercept” is defined as occurring not when data is captured and recorded, but only when it is actually listened to or read. Convenient.

It all amounts, effectively, to a parallel system of secret law – another completely unconstitutional concept. Would it be OK for the Supreme Court to issue secret opinions that determined how our most fundamental laws cam be executed in ways that are contrary to the plain meaning of the statutes? Well, that’s exactly what the intelligence apparatus and its puppy FISA court are doing. As Sen. Ron Wyden says:

"It may seem hard to believe but [T]he [FISA] court’s rulings … interpret major surveillance law and even the U.S. Constitution in significant ways, … and the public has no absolutely no idea what the court is actually saying. And what it means is that our country is in effect developing a secret body of law so that most Americans have no way to finding out how their laws and their constitution is being interpreted".

He further predicted that: “[W]hen the public finds out that these secret interpretations are so dramatically different than what the public law says, I think there’s going to be extraordinary anger in the country.”

So, all the careful rhetorical formulations are designed to distract from this essential fact: The government has assumed for itself the blatantly unconstitutional right to record every facet of every American’s life that it wants to, and the right to keep secret from all Americans that it is, and how it is, doing so. It is only thanks to Edward Snowden that the latter is no longer possible.

Everything that you hear from every government official, and from the leaders of Congress, is designed to misdirect and deceive you about this. Alexander Cockburn used to quote his father’s sound advice that one should “never believe anything until it's officially denied,” and the obverse is also generally true, especially in the age of Obama: Once they tell you their version of what they are doing, you can be pretty sure that they are doing exactly the opposite.

We have only discussed the official version of the surveillance system, and only addressed its constitutionality. Let’s, for a moment, take a look at the actual practice, which puts the lie to the official doctrine of some kind of wall between metadata and content. You know that thing where they cross-their-heart promise to go to a judge and get an individualized warrant before actually listening to any recording of individual? Well, make that fingers-crossed. We have known since at least 2008 that this is simply not true. Please watch the ABC Newsinterviews with David Murfee Faulk – described by ABC as a “NSA Whistleblower” – recounting how he and his team would listen to American military officers having phone sex with their wives and girlfriends, because, well, everything had been recorded, and it was so easy to do: “It was there stored the way you’d look at songs on your iPod. You’d look at your screen and there’d be a list of calls….Hey, check this out there’s some good phone sex. There’s some colonel making pillow talk.” And watch his colleague, Adrienne Kinne, also interviewed in 2008 by ABC and Democracy Now, describe how they listened to ordinary, innocent and “unwarranted” American soldiers and civilians, as well as “humanitarian aid organizations, non-governmental organizations, who include the International Red Cross, Red Crescent, Doctors Without Borders, a whole host of humanitarian aid organizations. And it also included journalists.”

In fact, thanks to Snowden and only thanks to Snowden, in the past few days the NSA has been forced to admit to Congress that, under the present surveillance regime “it does not need court authorization to listen to domestic phone calls.” Indeed, according to Director of National Intelligence Michael McConnell, the intelligence apparatus operates under the wonderful principle that “the president had the constitutional authority, no matter what the law actually says, to order domestic spying without warrants.”

Along with the constant assertion of presidential dictatorial prerogative, the outline and much of the specifics of the NSA surveillance program were not unknown, even if generally unnoticed, before Edward Snowden came out with his documents. If you want to understand the deep background on all this, read Jane Mayer’s fine New Yorker piece from 2011. In it, you’ll get the story of William Binney, a conservative 32-year career NSA mathematician, who developed the algorithm for analyzing mass amounts of data in real-time, adding elements that encrypted content in ways that might have lent to effective “warrant for contents” practices. When he saw that the NSA was adopting a more unrestricted program, and turning it on Americans en masse – tendencies, it is important to note, he saw emerging before 9/11 (see below) – he resigned in disgust in October, 2001. He now wants to “apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.” Binney, along with his mainstream career NSA colleagues, Russell Tice, and Thomas Drake, and, later, Diane Roark, a registered Republican legislative aide on the House Intelligence Committee, tried to warn, first, their superiors, then Congress, then the public, of what was going on – only to face FBI raids and Justice Department indictments that largely destroyed their lives.

Mark Klein of AT&T also told us in 2007, on national televsion that the NSA was directly siphoning all of AT&T’s traffic, and that “They’re copying the whole internet.” Senators Ron Wyden and Mark Udall tried their best to get the Congress, the media, and the populace to question what was going on. Recently, Binney and James Bamford told us repeatedly about the NSA building a huge new complex in Utah to store all the information they are collecting on us. Take a look at this great Defcon 20 panel from last year with James Bamford and William Binney, this article by Bamford in Wired , and this Laura Poitras Op-Doc, all from 2012, which lay it all out in detail. (Robert Greenwald’s film, War on Whistleblowers, also covers some of this ground.)

"We certainly have ways in national security investigations to find out exactly what was said in that conversation. It’s not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.…welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not,” and “all digital communications in the past” are recorded and stored.

He’s clearly talking about content, not just metadata, and about something that is inadmissible in court – probably because it’s blatantly unconstitutional. How can they use all the stuff that they have stored in the Captain’s Log? Ask David Petraeus.

So, yes, those who have not been aware that the government has completely eliminated our privacy rights over the last twelve years have either not been paying attention or have not wanted to recognize what they’ve seen and heard. Nor is this the first time we have seen a government going into aggressive attack mode against any attempt – whether made through public media or within institutional channels – to question the constitutionality or democratic political propriety of this massively intrusive surveillance effort.

We might also point out, for those who think the intelligence and police agencies of the United States government ever had much concern for our ostensible constitutional rights, that the whole “the president had the authority, no matter what the law actually says” thing goes back quite a long time. As indicated above, and as most liberals recognize, the Republican administrations of Bush and Nixon operated on this premise. But there’s also the Democratic Carter administration, whose Attorney General, Griffin Bell, was the only AG in US history to be found in contempt of federal court, when he refused a court order for documents in case of Socialist Workers’ Party (SWP) vs. the United States – which the SWP won. This was a case related to the ongoing, vicious, COINTELPRO (here and here) program, which involved little things like warrantless wiretapping, surveillance, burglary, blackmail of legal, non-violent individuals and organizations neither charged nor convicted of any crime – practices that Bell pointed out, as if in mitigation, had "been going on for 40 years in this country." That would be the 40 years since the Democratic president, Franklin Roosevelt, created the FBI under J. Edgar Hoover. But that’s – Is it? – another story. (For sure, it’s a story that’s not very well publicized.)

Indeed, how frustrating is it that we have fought, and thought we had won, this battle already? As Jonathan Turley remarks, it turns out that, in so many ways, Nixon won Watergate. Indeed, Al Gore was quick to point out during the George Bush administration, warrantless wiretapping was an impeachable offense for Richard Nixon. The Church Committee investigated abuses like COINTELPRO, with remarkable candor, and it gave rise to the original FISA law. That FISA regime was a fatal compromise – a secret court, staffed with compliant judges, and thus, the antithesis of what a court is expected to be, but it functioned well enough, as long as the underlying American political culture remained infused by the post-Church rights’ ideology . As Thomas Drake, former NSA senior executive and whistleblower, tells us: “Before 9/11, the prime directive at the NSA was that you don't spy on Americans without a warrant; to do so was against the law – and, in particular, was a criminal violation of Fisa.” Clearly, according to Drake and William Binney, 9/11 put the nail in the Fourth Amendment’s coffin, but, ideology being more powerful than law, the growth of authoritarian ideology over the previous twenty years had already prepared the ground, and Binney saw what was in the works early in 2011:

But that wasn’t what the government wanted to do. I mean, when Qwest, the CEO of Qwest, was approached in February of 2001—that was before 9/11—to give over customer data, it was all—it was still targeting domestic spying, and that was call records they were trying to get from that…and the consequence for him was they targeted him, and now he’s in prison. So, I mean, they succeeded in prosecuting him. But what it told me was that the intent from the beginning was to do domestic spying, accumulating information and knowledge about the U.S.—the entire U.S. population. So I thought of that as a J. Edgar Hoover on super steroids, you know? It wasn’t that he had information and knowledge to leverage just the Congress. You have information and knowledge to leverage everyone, judges included, in the country. So, that’s why I got so concerned. I tried to work internally in the government to get people to do something about it, but that whole process failed. So what it did was it alerted them to what I was doing, and they targeted me with the FBI, and they attempted to falsely prosecute me. Fortunately, I was able to get evidence of malicious prosecution every time, so they finally backed off trying to prosecute me.

So here we are: The victories concerning citizens’ rights that we thought had been won 35 years ago have been – in secret, as far as the public knew, but with the bipartisan connivance of our supposed representatives – more than erased, and we now have to fight them all over again, in a worse ideological atmosphere. Just as the whole post-Vietnam restriction on presidential war-making prerogatives seems to have disappeared. Proving, again, that, unless we radically change the nature of the state – something very different from electing new governments every few years – the forces who control the deep state will use their wealth and power, publicly and surreptitiously, to undermine any real “reforms” that we may achieve, and, zombie-like, claw their way back to unfettered power. (Zombies need to be well and firmly targeted, if they’re going to stay down.)

That the information about the NSA surveillance program has been available for some does not at all minimize what Edward Snowden and his journalist associates have done. They have provided the “smoking gun” – the actual government documents that irrefutably anchor and confirm what has been a series of disparate testimonies. It’s one thing to hear that William Binney or Thomas Drake says that we’re all being watched; it’s quite another to read the actual government court order that demands "all call detail records or 'telephony metadata'” on an “ongoing, daily basis.” And yet another to see the pictures and words of the actual government documents boasting how the NSA collects contents of the email, search history, video and voice chat, VOIP telephone calls, video, photos, files transferred, and social networking details “directly from the servers" of major US internet service providers in such a way that “They quite literally can watch your ideas form as you type.” The release of these documents has forced the government to acknowledge these programs, and leaves no room for stubbornly secretive authoritarian conservatives or stubbornly wishful-thinking liberals to deny their existence and extent. It gives us new ammunition to renew the unfortunately repetitive, but nonetheless necessary, fight for our fundamental rights.

It is thanks to Edward Snowden and only Edward Snowden – acting in defiance of the power of the President, the Democratic and Republican congressional leadership, the industry-intelligence-military apparatus, and the partisans of the deep imperial state – that we have this ammunition. Which is why anyone who is committed to a politics of democratic liberation must support Edward Snowden, and his whistleblower colleagues like Bradley Manning, and their journalist collaborators like Glenn Greenwald and Julian Assange.

One must do this, whatever one thinks of any of them personally, and whatever the lawyers decide about the legality or even constitutionality of their actions. Let me be clear that I consider what Snowden and Manning have done to be whistleblowing in the finest sense: the revelation of facts that are criminal and/or unconstitutional, that have been kept secret from the public, and that the public should know about. I consider that they have upheld a fealty to the constitution that trumps any lesser contract. And nobody can pretend that rendering illegal what Greenwald or Assange has done is anything but an assault on freedom of the press. But that is not the ultimate point. There have been plenty of legal regimes – say, Jim Crow – that have been lawful and constitutional, and wrong from a liberatory democratic perspective, and the only way they have been changed is through civil disobedience and determined resistance – most definitely including refusal to enforce even “neutral” laws that are being used to crush that resistance and buttress a profound injustice.

Those who like to imagine that they would have fought the good fight in historical battles against important systemic injustice should take this opportunity to put their actual selves where their minds are. Reject the authoritarian yammerings of the likes of Tom Friedman, David Brooks, Diane Feinstein, Peter King, Mitch McConnell, Barack Obama, etc, who care not a whit about what’s “legal,” and are trying to confuse and distract for only one reason: to keep an intolerable surveillance regime in place.

[T]here has not been in American history a more important leak than Edward Snowden's release of NSA material – and that definitely includes the Pentagon Papers 40 years ago. Snowden's whistleblowing gives us the possibility to roll back a key part of what has amounted to an "executive coup" against the US constitution.

Speak loudly and clearly and, as much as possible, act in solidarity with those are doing their utmost to change it, and make sure that Nixon doesn’t win Watergate, again.